Blog Traffic

July 27, 2010

Lower courts struggling to figure our Padilla's retroactive impact

The New York Law Journal has this interesting new piece, headlined "Courts Differ About Retroactive Effect of High Court Counsel Ruling," which spotlights lower courts struggling to implement the Supreme Court's work in Padilla. Here are excerpts:

In Padilla, 130 S. Ct. 1473 (2010), the Court held that an attorney's failure to inform a client of the collateral deportation consequences of a guilty plea amounted to ineffective assistance of counsel.

"This Court concludes that in Padilla the Supreme Court announced a new rule of criminal procedure rather than applied settled law to a new set of facts and that the Padilla rule is not a 'watershed' change that must be applied retroactively to cases on collateral review," Clott wrote in People v. Kabre, 2002NY029321, 2003NY021859, 2004NY017122.

The ruling comes just two months after Bronx Criminal Court Judge Lynn R. Kotler arrived at the opposite conclusion in People v. Bennett. In Bennett, 2010 WL 2089266, Jermaine Bennett claimed that his attorney told him that he did not think pleading guilty to criminal possession of marijuana in the fifth degree would have any immigration consequences. Concluding that Padilla should be applied retroactively, Kotler ordered a hearing to decide whether Bennett's conviction had been obtained in violation of his Sixth Amendment right to counsel.

And in June, Eastern District of New York Judge Joanna Seybert noted in People v. Obonaga that "[r]easonable jurists have disagreed about whether Padilla has retroactive effect." 2010 WL 2629748.

In an interview, Steven Banks, attorney-in-chief of the Legal Aid Society, said that while no federal or state appellate court has decided whether to apply Padilla retroactively, the issue is coming up more frequently as defendants try to have their convictions overturned based on the Supreme Court's April ruling. Legal Aid is planning to file several such cases and the number of actions "seem to be increasing as time goes on," Banks said.

"Looking across the country, more courts than not have correctly applied Padilla. We are hopeful as time goes on that the Bennett decision will be the one that is embraced," Banks said, adding that the issue "may well end up at the [New York State] Court of Appeals, depending on how the Appellate Divisions handle the matter."

But according to Robert S. Groban Jr., the population of litigants who can challenge their convictions based on Padilla, while large in theory, might be limited as a practical matter, since defendants who face deportation as a result of a guilty plea might not have access to the judicial system. It "may be difficult to get the jurisdiction of a U.S. Court … if you've been removed and are sitting in Burma," Groban, the national chair of Epstein Becker Green's immigration law group, said in an interview.